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Judicial Review of Preventive Detention under J&K Public Safety Act, 1978
Dinesh Singh Chauhan9/21/2019 10:16:39 PM
Former J&K Chief Minister Dr. Farooq Abdullah was detained under the J&K Public Safety Act, 1978 on September 16, 2019. Eighty-three year old Dr. Farooq Abdullah, has been J&K's Chief Minister in 1982-1984, 1987-1990 & 1996-2002. He was elected as a member of the Indian Parliament (Lok Sabha) as well as (Rajya Sabha) and also remained Union Cabinet Minister. This was hours before the Supreme Court was due to hear Rajya Sabha Member Vaiko's Habeus Corpus Petition, seeking the J&K Government to produce him in Court and release him from detention.
Statements mobilising people against the State and the "tremendous potential" to create public disorder in the Valley are among the charges listed against former J&K Chief Minister Farooq Abdullah, who has been booked under the Public Safety Act. It says he could have debated the issue rather than threatening the integrity of the country and glorify militancy. The order also accuses him of propagating "secessionist ideology" besides posing a threat to life and liberty of the people.
Dr. Farooq Abdullah, the order states, "has tremendous potential for creating an environment of public disorder within the District (Srinagar) and other parts of the Valley". It accuses him of being a person seen as fanning the emotions of general masses against the country. The order, which states that Abdullah's residence "G-40 Gupkar Road" has been declared a subsidiary jail, has also been accused by the State Administration of issuing statements in conflict with law that were aimed at disturbing public order.
Though the formal order of detention was passed on September 16, 2019, Dr. Farooq Abdullah has been under house arrest since August 05, 2019 the day when President of India had issued the Constitution (Application to Jammu & Kashmir) Order, 2019 under Article 370 of Constitution of India to revoke the special status of J&K.
On September 11, 2019 the J&K High Court allowed two NCP leaders to meet Abdullah on condition that they should not talk to media about the meeting. This order of the High Court recognizes the fact that Abdullah was under restrictions, even before the issuance of formal detention order.
What is 'Preventive Detention'?
The history of civilized man is the history of incessant conflict between liberty and authority. The Constitution of India contains sufficient guarantees to prevent the misuse of the State power to arrest and detain the individuals but the 'preventive detention' is an exception to the general law providing protection against arrest and deprivation of personal liberty. The word 'preventive' is used in contradiction to the word 'punitive'. The justification for such detention is suspicion or reasonable probability and not criminal conviction which only can be warranted by legal evidence. The 'preventive detention' is not punitive in nature and it is not an alternative to criminal trial. The purpose of such detention is to prevent a person from indulging in activities prejudicial to security of the State or Public Order or from indulging in anti-national activities. A clear distinction has to be drawn between 'preventive detention' in which anticipatory and precautionary action is taken to prevent recurrence of apprehended events and punitive detention where action is taken after the event has already happened. The 'preventive detention' can be ordered notwithstanding the fact of non-registration of criminal case against him and the possibility of launching a criminal prosecution cannot be bar to the 'preventive detention'. The power of 'preventive detention' has been recognized as a necessary evil but is accepted in a free society in the larger interests of society of the State and the maintenance of 'Public Order.'
History of 'Preventive Detention'
In India, 'preventive detention' was introduced for the first time in 1818 by the Bengal State Prisoner's Regulations. The Government of India Act, 1935 also contained the provisions for 'preventive detention' empowering Federal as well as Provisional Legislatures to enact laws providing for 'preventive detention'. The Federal Legislature had legislative powers with respect to matters contained in Entry I of List I and the Provisional Legislature over the matters contained in Entry I of List II. Though some members of Constituent Assembly who framed the Constitution of India were victims of 'preventive detention' during British Rule over India particularly during World War II, still the provisions relating to 'preventive detention' were included in Constitution of India. The need to keep such provisions in the Constitution was felt due to the violence which had erupted during partition of India. The need felt by framers of the Constitution of India in giving constitutional status to 'preventive detention' was with the object of giving anti-social and subversive elements from imperilling the welfare of the Infant Republic.
Power of Parliament & State Legislatures to enact laws providing 'preventive detention'
Article 246 clause (i) of Constitution of India identifies powers of the Parliament to make laws with respect to any of the matters enumerated in its List I [Union List] of the Seventh Schedule. Entry 9 of Union List identifies the powers of Parliament to enact laws providing for 'preventive detention'.
Thus the Parliament alone can enact laws providing for 'preventive detention' when such detention is to be ordered for reasons connected with Defence, Foreign Affairs or the Security of India.
The clause (2) of Article 246 of the Constitution of India empowers the Parliament as well as State Legislatures to legislate with respect to the matters enumerated in List III of Seventh Schedule.
The Parliament as well as State Legislatures, thus, have concurrent powers to enact laws providing for 'preventive detention' for reasons connected with security of the State, the maintenance of public order, or the maintenance of supplies and services essential to the community and the persons subjected to such detention.
In fact power to enact laws is inherent in Parliament and State Legislatures. The Parliament or a State Legislature can enact any law subject to express provisions of Constitution of India. The Article 246 or Schedule Seventh of Constitution of India does not confer powers of legislation to the Parliament or State Legislatures but it distributes the legislative powers among Parliament and State Legislatures and provides the spheres within which they can exercise the legislative powers. The Parliament is excluded to enact laws with respect to matters contained in State List i. e List II of Schedule VII and the State Legislatures are excluded to legislate with respect to matters contained in Union List i.e List I of Schedule VII. If any provision of a law made by a State Legislature is repugnant to any provision of law made by Parliament with respect to any matter enumerated in Concurrent List the law made by Parliament whether passed before or after the law made by the State Legislature shall prevail. The Parliament may also enact laws containing provisions for 'preventive detention' under its residuary powers or while exercising legislative powers under Article 249 of the Constitution of India. The law providing for 'preventive detention' and the actions thereunder must, however, satisfy requirements of both Articles 21 & 22 of the Constitution of India.
Power of State Legislature & Parliament to make 'Preventive Detention' laws for State of J&K
So far as the State of J&K is concerned, State Legislature and not the Parliament was competent to enact 'preventive detention' laws. The reason being that by virtue of Article 370 of the Constitution of India various provisions of the Constitution apply in relation to the J&K State subject to such exceptions and modifications as the President may specify. The Parliament of India issued "The Constitution (Application to Jammu and Kashmir) Order, 1954" and had thereby extended various provisions of the Constitution of India to the State of J&K with certain exceptions and modifications. The Entry 9 of Union List and Entry 3 of Concurrent List under which 'preventive detention' laws can be enacted by the Parliament do not apply at all to the State of J&K. The residuary powers also lie with State Legislature. The Article 22 (2) and (7) of the Constitution of India apply to the State of J&K with the modification that in place of law made by 'Parliament' the law made by the 'State Legislature' is substituted. Thus, it is the J&K State Legislature and not the Parliament which has power to enact laws prescribing;
a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for 'preventive detention' without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4) of Article 22;
b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for 'preventive detention'; and
c) the procedure to be followed by an Advisory Board under sub-clause (a) of clause (4) of Article 22,
What is J&K Public Safety Act?
The detention order having been passed under the J&K Public Safety Act 1978, which was introduced by the Government led by Sheikh Mohammad Abdullah (Father of Farooq Abdullah). Many in the opposition either compromised the enactment with criminal silence or offered feeble resistance. But Chief Minister, Sheikh Mohammad Abdullah was fiercely confronted by then Janata Party MLA Abdul Gani Lone. The Act was enacted "in the interest of the security of the State and public order." It was brought to prevent timber smuggling and keep the smugglers in prison. It contains provisions for designating protected and prohibited areas, prevention of circulation of documents in the interests of communal harmony etc.
Section 8 of the Act deals with the power of authorities to detain persons. The Government can order the detention of a person :
* to prevent him from acting in any manner prejudicial to security of the State or maintenance of the public order;
* if he is a foreigner within the meaning of Foreigners Act;
* if he is a person residing in the area of the State under the occupation of Pakistan and it is necessary to regulate his presence or to expel him.
As per the definition given in Section 8, "acting in any manner prejudicial to the maintenance of public order" means
(i) promoting, propagating, or attempting to create, feelings of enmity or hatred or disharmony on grounds of religion, race, caste, community, or region;
(ii) making preparations for using, or attempting its use, or using, or instigating, inciting, or otherwise abetting the use of force where such preparation, using, attempting, instigating, inciting. provoking or abetting, disturbs or is likely to disturb public order;
(iii) attempting to commit, or committing. or instigating, inciting, provoking or otherwise abetting the commission of mischief within the meaning of Section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order;
(iv) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more, where the commission of such offence disturbs, or is likely to disturb public order.
The District Magistrates and Divisional Commissioners are also empowered to authorize detention.
As per Section 13 (1) of the Act, the authority making the detention should communicate to the detenu the reasons of detention to enable him to make a representation against the order of detention in exercise of the fundamental right guaranteed under Article 22 (5) of the Constitution of India.
However, the authority need not disclose such facts to the detenue which it considers to be against public interest to disclose [Section 13 (2)]. Therefore, the right under Section 13 (1) can be effectively defeated if the authority chooses not to disclose whole facts in public interest.
Period of detention
The maximum period of detention in the case of persons acting in any manner prejudicial to the security of the State is two years.
In case of a person acting prejudicial to the maintenance of public order or indulging in smuggling of timber, the maximum period of detention is twelve months.
Reference to Advisory Board
Within four weeks of passing a detention order, the Government has to refer the case to an Advisory Board, which consists of a Chairperson, who is or has been a Judge of the High Court, and two other members who are, or have been, or are qualified to be appointed as Judges of the High Court.
The Advisory Board, after considering the material placed before it and, after calling for such further information as it may deem necessary from the Government and after hearing him in person, submit its report to the Government within eight weeks of detention order.
If the Advisory Board opines that there are sufficient causes for 'preventive detention', the Government can keep the person under detention for such period as it thinks fit, subject to the maximum limit.
Can detention be challenged?
The Advisory Board is supposed to examine if there are sufficient reasons for 'Preventive Detention'.
It is pertinent to note that the detenu has no right to engage a legal practitioner before the Advisory Board. The Advisory Board can also decide if the disclosure of grounds of detention to the detenu will affect public interest. The detenu is not entitled to the report of the Advisory Board, if the Board decides that it should remain confidential.
The detention can be challenged through Habeas Corpus Petitions before High Court under Article 226 of Constitution of India. However, the scope of challenge is limited to grounds of procedural violations.
If there is non-application of mind by the Detaining Authority, or non-communication of the grounds of detention to the detenu, the High Court can quash the Detention Order as illegal. There are cases of High Court interfering with Detention Order on the ground that authority failed to inform the detenu of his right to make representation to the Detaining Authority and the Government against the order. It is important that the District Magistrate forms independent opinion regarding the necessity of ordering Preventive Detention. If the Magistrate merely copies the report of the Police, it will be a case of non-application of mind. The High Court has quashed Detention Orders on the ground of non-application of mind, after finding that the order was a verbatim copy of the Police Dossier.
Non-supply of relevant material documents to the detenu is also a ground for setting aside Detention Order. The grounds of detention are not to be formulated in shorthand, or in a language of abbreviations or acronyms only known to the Detaining Authority.
J&K Reorganisation Act, 2019 passed by the Parliament on August 09, 2019, makes it clear that the J&K Public Safety Act, 1978 would continue to remain in force in the newly created Union Territory of Jammu & Kashmir and Union Territory of Ladakh.
Preventive Detention is resorted to when the Executive is convinced that such detention is necessary in order to prevent the person detained from performing an act or preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order. The compulsions of the primordial need to maintain order in society, without which the enjoyment of all rights, including the right to personal liberty of citizens would loose all their meanings provide the justification for the laws of 'preventive detention'. Laws that provide for 'preventive detention' posit that an individual's conduct prejudicial to the maintenance of public order or to the security of State or corroding financial base provide grounds for satisfaction for a reasonable prognostication of possible future manifestation of similar propensities on the part of the offender. the justification However. the High Court will not undertake substantive review of the merits of the detention and generally refrain from reviewing the "subjective satisfaction" formed by the Detaining Authority regarding cause of detention, except there are patent illegalities or unreasonableness. The powers of the courts are very much circumscribed in the PSA detentions and the Courts have very limited powers to quash such detentions for anything other than technical grounds and procedural infirmities.
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